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ARBITRATION PROCEEDING[Regular]

In the Matter of Arbitration

-between-

AUG021884

®AVQSAUE C.PNATIONAL BUSINESS AGENT

UNITED STATES POSTAL SERVICE, )Denver, Colorado Post Office, )Wellshire Station, )

OPINION AND AWARDThe Employer, )

-and- ) OF

NATIONAL ASSOCIATION OF LETTER ) ARBITRATORCARRIERS (NALC), Mile Hi Denver )Branch No . 47, on behalf of )Larry A. Chapekis, )

The Union andGrievant .

W1N-5F-D-19880

Re : Removal [Failure to Secure )Mail, Unauthorized Curtail- )ment of First-Class Mail & )Threatening a Postal Service )Supervisor] )

Joseph F . GentileArbitrator

June 30, 1984

Los Angeles, California

[1680-2486-84]

Decision [ USPS & NALC #198801

BACKGROUND

p . 1

Pursuant to Article 15 of the National Agreementbetween the UNITED STATES POSTAL SERVICE (" Service" or"Employer") and the NATIONAL ASSOCIATION OF LETTER CARRIERS("NALC" or "Union "), the undersigned was selected from theRegular Panel of Arbitrators for the Western Region to serveas the Impartial Arbitrator to hear and render a decision inCase W1N-5F-D-19880 .

An evidentiary hearing was held on Wednesday, May23, 1984, at the Main Post Office, Denver , Colorado, 1823Stout Street , Room 284 Law Library, Denver , Colorado .

During the course of the hearing all. partieswere afforded a full and complete opportunity to be heard,cross-examine witnesses , develop arguments and presentrelevant evidence . No official transcript was made of thehearing . All witnesses appearing before the undersignedwere duly sworn . After receipt of the evidence, closingarguments were presented orally by the Union outside thepresence of the Employer . The Employer ' s arguments werereserved to a Post - Hearing Brief . This was received June19, 1984 . The matter stood fully submitted as of that date .

Larry A . Chapekis ("Grievant ") was fully and fairlyrepresented by the Union . He attended the entire hearing andtestified .

APPEARANCES BY COUNSEL

For the Service :

William E . BowlingRegional Labor Relations

ExecutiveU .S . Postal ServiceMain Post Office1823 Stout StreetDenver, Colorado 80202-2597

For the Union :

Paul C . DavisNational Business AgentNational Association of Letter

Carriers3 Innwood Circle, Suite 201Littlerock , Arkansas

72211

Decision [LISPS & NALC #19880]

ISSUES AND PROCEDURAL CONSIDERATIONS

At the commencement of the hearing , the partiesagreed to the following as the issue to be addressed anddetermined by the Arbitrator:

"Whether the Postal Service had just causeto discharge the Grievant, Larry Chapekis?"

"If not, what is the proper remedy?"

p . 2

The parties further indicated that the matter wasproperly before the Arbitrator for hearing and decision .

APPLICABLE CONTRACTUAL PROVISIONS

Article 16 , Section 1 , of the National Agreementestablishes the principles which govern the administration ofdiscipline . "Just cause " is one of these principles .

FACTUAL SUMMARY

The Grievant in this matter was initially employedby the Service on January 23, 1982, as a Mailbandler . As withother applicants for employment with the Service , the Grievantwas given a pre-employment medical. examination on November 2,1981, by D . M . Olson, M .D . ("Dr_ Olson" ), the Service ' s medicalOfficer in the area and a Specialist in Occupational Medicine .

At the time of the Grievant's examination by Dr . Olson,the Grievant had just received from the Veterans Administrationa "Rating Decision " that his prior rating of September 25, 1980,was "confirmed and continued ." That prior rating was stated tohe "50% from 9 - 1-78" for "schizophrenia , paranoid type, compet-ent ." Dr. Olson was aware of this medical information and thatthe Grievant had been treated by the Veterans Administration fora "nervous condition ." Dr . Olson further testified that he11 . . found no physical health problems ."

Decision [LISPS & NALC #19880] p . 3

The written narrative on the "Rating Decision" whichdescribed the Grievant ' s behavior patterns with respect to thediagnosis of "schizophrenia , paranoid type , competent" willnot be restated in this decision . It was carefully noted,however, particularly the statements relative to the Grievant'sperceptions of other people vis-a-vis his own behavior .

On February 1.2, 1982, the Grievant received his30-day Probationary Employee Evaluation Report . This documentfound the Grievant satisfactory and recommended for retention .The 60-day Probationary Employee Evaluation Report dated March23 ; 1982, also contained the same evaluation .

According to the documentation , the Grievant experiencedsome problems in his interpersonal relationships on the job . TheGrievant obtained a follow-up report from the out-patient mentalhygiene clinic for the Veterans Administration dated April 5,1983 . This document was given by Mel Singer ("MS"), a LSW il .MS indicated that he had followed the Grievant for eight yearsand noted " . . - problems of agitated , guarded behavior andbecoming upset -in the 'presence of numerous and frequent con-tacts with other people' ." MS apparently recommended assign-ment where the Grievant would have "limited contacts with otherpeople, especially authority figures ."

On April 20 , 1983, Dr . Olson authorized the Grievant.for a fitness - for-duty examination by Clyde Stanfield, M .D .("Dr . Sta.nfield" ), a Diplomate in Psychiatry . Dr . Stanfieldconducted a psychiatric evaluation of the Grievant on May 2,1983 . His written report of this evaluation was issued on may5, 1983 . The Report of Dr . Stanfield was rather detailed andcontained a lengthy recommendation . In pertinent part, certainportions of that recommendation should be quoted because ofthe relevance to the current matter :

"Phychiatric assessment confirms this employe'sincreasing maladaptation to the assigned tasksand personnel. relationships as a mail handler .His defensive posture, hypersensitivity tocriticism , and problems with authority clearlypresent difficulties which are maximized underconditions of close and competitive supervisionand confinement , compared to assignment as adriver or carrier . . .

Decision [ USPS & NALC # 19880]

"It is my considered opinion that thisemploye can more readily adapt to thecarrier craft assignment he has requested,even though this involves broader contactwith the customer public . His quarrelseems much more with peers whom he regardsas beneath him and supervisors whom he in-fers are either harassing or rejecting . Iwould anticipate less interpersonal stressfrom his interaction with supervisors as acarrierr or driver than he has as a mailhandler , and considerably better motivationin his peer contacts . Beyond this , clinicalpsychiatric evaluation confirms the chronicpersonality problems and vulnerability tomarginal psychotic decompensation undersignificant reverses or stress, and thatthis problem is likely to be unchanging inforeseeable future . The Postal Service hasa right to expect him to maintain standardsof behavior and performance required of thosecomparably assigned , and I find no intellectualor additional hazard to his safety or that ofothers in such a re-assignment --indeed probablyless hazard of explosive hyperreactivity thanfrom his continuing in his present frustratingmilieu ."

[emphasis supplied]

As a result of Dr . Stanfield's recommendation,the Grievant was moved to the Carrier Craft on or aboutJune 11, 1983 . He became a Part-Time Flex City Carrierworking out of the Wellshire Station of the Denver , ColoradoPost Office .

A sequence of incidents took place on October 11,1983, which caused the issuance on. October 25, 1983, of a "Noticeof Charges -- Proposed Removal" ("Notice") . This documentwas issued by Steve Shults (" SS"), the Acting Supervisor Mails& Delivery . Three Charges were listed : ( 1) "failure to securethe mail and your assigned vehicle," ( 2) "unauthorized curtail-ment of first -class mail ," and (3 ) "threatening a Postal ServiceSupervisor ." The essence of these Charges will be reviewedbelow .

Decision [USPS & NALC #19880] p . 5

By Memorandum dated November 9, 1983, the Grievantwas informed that it was the decision of the Service to effecthis removal on November 26, 1983 . This "Letter of Decision"("Letter") was issued by Gary L . Packer, MSC Manager/Post-master . The conclusion reached in this Letter was that theevidence fully supported the three Charges found in the Notice .

Parenthetical to the Notice and Letter, at thehearing of this matter, two of the "elements" of the Grievant'spast record, and the only two listed, in the Notice and re-affirmed in the Letter were modified : (1) the Letter of Warn-ing was removed per a grievance settlement and (2) a Suspensionof seven (7) days was reduced to five (5) days at Step 1 andsubsequently reduced to one(l) day through the expeditedarbitration process . Thus, the Arbitrator had only a one (1)day suspension as the Grievant's past record as compared withthe elements before Gary Packer ("GLP") .

The Grievant was removed as stated in the Letter .A grievance was filed questioning the contractual proprietyof the removal . The grievance was duly and properly processedthrough the steps of the grievance procedure, but without re-solution ; thus, the basis for the instant arbitration proceed-ing .

Subsequent to the removal, the Grievant applied tothe State of Colorado Division of Employment and Trainingfor unemployment benefits . The Grievant'was initially dis-qualified, an appeal taken and a hearing before a Refereeobtained . The Service did not participate in the hearing . Thedecision of the Referee was issued on or about February 24,1984 ; it granted the Grievant benefits . Certain findings weremade by the Referee as reflected in his decision ; however,these were given no weight in this hearing .

Charge #1 of the Notice related to an incidentwhich took place at or around 1 :15 p .m . on the Grievant'sRoute 3753 on October 11, 1983 . At that time, SS and anotherSupervisor, Carroll Nelson ("CNV), arrived at a mailroon onthe Route and found it unlocked . The Grievant's vehicle wasalso unlocked, the hand break was not set and there wereseveral pieces of first-class mail inside the vehicle . After

Decision [USPS & NALC #19880] P. 6

approximately ten minutes (according to the testimony of SS),the Grievant was found inside the apartment complex officestalking on the telephone . The Grievant claimed he was on hisbreak . According to the Grievant , SS said , "get off the phone ."SS indicated he "told him to get off the phone ." The Grievantapparently said something to this effect to the person on theother end of the line : "I gotta go, my boss is on my back!"The Grievant did get off the phone .

When questioning the Grievant about the unsecuredmail, the unlocked vehicle and mailroom, the Grievant ack-knowledged the problems and was upset . This was SS ' s recol-lection. The Grievant said something to this effect : "youdon't scare me, I'm not afraid to die ." A stipulation wasreceived that if CN was called to testify, he would testifythat this statement was made by the Grievant . SS furtheradmitted that he made a statement to that effect . SS testifiedthat the Grievant said, "this is not my fault, this is manage-ment's ." The Grievant did not acknowledge he made this latterstatement during the hearing, but did testify that SS was" . . . very overbearing, relentless in his pursuit of me andharassed me . . ." SS denied these allegations . SS then re-turned to the Station .

Charge #2 related to certain first-class mail (aboutone and a half feet) which the Grievant allegedly did not takeout that morning after being instructed by SS to do so . TheGrievant denied he curtailed any first-class mail that wasunder his case . The Grievant testified that the first-classmail at his case arrived in the p .m .

The last of the three Charges related to an allegedthreat by the Grievant -- a threat directed to SS . The allegedthreat was made at approximately 4 :00 p .m . when the Grievantreturned from his Route, and spoke to SS . SS's recollections,as reflected in his testimony (as contrasted to his writtenstatement) before the Arbitrator, indicated the following asto the verbal exchange and his perceptions of the Grievant'stone and behavior :

" . . he [the Grievant] yelled across thefloor when he arrived and said he wanted tospeak with me . My response was 'that is good,I want to speak with you after you check in .'

he [the Grievant] yelled again walkingtoward me and said in a very angry tone, 'don'tyou ever tell me to get off the phone again!'

Decision [ USPS & NALC #19880] p. 7

He [the Grievant ] was really upset . I said,' Mr . Chapekis , I don't have to take thisabuse on the floor, please go to the officeand I will talk to you .' He walked towardsme very aggressively , breathing very heavy,chest heaving and his hands were clenched athis side . . . At this point I wondered whatwas wrong . . . He got close to me, his eyeswere glazed , his hands across his chest andmoisture came from his mouth . I told himto 'either go to the office or punch off theclock .' He [the Grievant ] said , ' I'll punchout alright ,' walked up to me with clenchedfists and was toe-to-toe with me . He [theGrievant ] said , ' Let's go outside right nowand I ' ll kick your ass .' He then calmed downreal fast and said , ' I'll take care of mypostage due ' ; he was very claim at this time .I told him to punch off the clock . He wentto the clock where he said to me , ' I'm goingto get you -- I'm going to kill you.' He[the Grievant ] then clocked out ."

The Grievant ' s recollection of the above sequencewas different from SS ' s testimony in content and tone, thoughhe admitted there was an exchange . The Grievant testifiedhe told SS he wanted to talk with him and that he said, "don'tyou ever tell me to get off the phone in that manner ." Hedenied he either made any threatening gestures or made anyverbal threats to "get him or kill him ." He acknowledgeda statement was made to " let the chips fall where they may ."

SS testified he was unaware of the Grievant'spsychiatric disability during the above period of time .

Bob Higginbotham (" BH") another Letter Carrierat the Wellshire Station , testified that he was on the floorwhen SS spoke to the Grievant in the morning on the day inquestion and that SS did, in direct terms , tell the Grievantto "move the first-class mail ." When SS left , BH statedthat the Grievant said , " Shults doesn't understand me ."

BH was also present at 4 :00 p . m . on the same dayand heard the Grievant yell and say to SS in a "mock threat-ening tone ," " if you do that or say that again , it will costyou then ." BH testified that he did not hear anything elseand "saw no threats of any kind ."

Decision [USPS & NALC #19880] p. 8

Howard LeMaire (" HL"), another Letter Carrier atthe Wellshire Station , testified that he was on the floorat or about 4 :00 p .m . on the day in question . He stated heheard the Grievant say to SS , " don't ever walk into a placeand tell me to get off the phone ." HL stated this was saidin a "loud tone ." According to HL , SS's response was, "I'lltell you what to do at that time ." The Grievant said, againaccording to HL, "Well , I was at my break ." The conversation"got louder and more boisterous " at which time he recalledSS saying , " go case up or get off the floor ." The Grievant'sresponse was "why don ' t you step outside and show me whata real man you are!" HL described the Grievant as "angryand frustrated " ; however, he heard no threats to kill orget anyone .

As to the Grievant's relationship with supervisiongenerally and SS specifically , HL testified that the Grievant"was not treated any differently from any other employee ."This testimony was corroborated by Charles Lane ("CL"), anotheremployee at the Wellshire Station .

The above reflects the essence of the factualcontext for this removal action . The quotations were takenfrom the Arbitrator ' s notes taken during the hearing andwere purposely detailed because of the nature of the Charges,the Grievant ' s stated psychiatric disability, and the remedyultimately determined .

Ancillary to the factual narrative just recreated,the evidence indicated that witnesses to the incident foundin Charge # 3 were not interviewed by the Service . It wasalso noted that the Service did not schedule the Grievantbetween October 12, 1983 and the date of his removal ; he wasPart-time . The Service, however, paid the Grievant a guaranteeof four hours of pay per day for the period indicated .

POSITIONS OF THE PARTIES

It was the position of the Service that the Grievantfailed to maintain the standards of behavior and performancerequired of employees in comparable assignments . Regardlessof his established disability , this was the standard whichDr . Stanfield stated and the one the Grievant failed to keep .

Decision [ LISPS & NAT.,C #19880] p. 9

The Charges as enumerated in the Notice andsupported in the Letter were proven by the weight of theevidence . They were serious Charges and sustain a findingof "just cause ."

The Union's position was to this effect : con-sidering that the Grievant ' s past record was materiallymodified since it appeared in the Notice and was used tosupport the removal action , the removal of the Grievant wastoo severe a penalty for the proven offenses . The Grievanthad a clear disability which must be fully considered inthis matter , though supervision was not made aware of thisfact . There was no clear evidence of any threat -- in-appropriate comments may have been made ; however , when viewedin the perspective of the Grievant's disability and super-vision's poorr approach , mitigation must be fully considered .*This the Service failed to do .

Therefore , the penalty of removal was not supportedby "just cause ."

OPINION AND CONCLUSIONS

As a threshold consideration , the Arbitrator mustfirst note that the Notice was modified at the commencement ofthe hearing . The modification came in the "elements of pastrecord" section . Item #1, the Letter of warning, was removed .Item #2, the Suspension , . was seriously modified . Thus, theonly element in the Grievant's past record before the under-signed was a one ( 1) day suspension for AWOL ( late reporting) .

Taking the Charges as . they appeared in the Notice,the Arbitrator found that the evidence clearly established theelements of Charge # 1 ; therefore, the Arbitrator must agree withthe conclusion by GLP in the Letter that this Charge was fullysupported by the evidence . Considering the Grievant ' s admissionon these points and the absence of any persuasive reasons toeither explain or excuse such conduct , further elaboration neednot be made in this decision .

* A number of arhitral decisions involving the Servicewere submitted on this point . Though they were readand considered , they will not be restated herein .

Decision [ USPS & NALC #198801 p. 10

With respect to'Charge #2, there was a conflictin the testimony ; thus , the ultimate resolution of thismatter rests in the area of credibility . Was there first-class mail left at the Grievant ' s location and was he toldto deliver all first- class mail that morning ? Having con-sidered the testimony , the Arbitrator credited management'switnesses and thus answered both of these questions "yes ."Mai was indeed curtailed ; however , the Arbitrator did notfind that the Grievant intentionally engaged in this act,but failed to remember his instructions . Regardless, thefact remains that the basis for this Charge was established .Therefore, the Arbitrator must again agree with GLP that thisCharge was supported by the evidence .

Charge #3 is the most difficult and serious of thethree enumerated Charges . Abusive behavior , particularlythreats, towards members of supervision constitutes groundsfor discipline . The degree of discipline relates to thecircumstances surrounding the specific behavior . Mostarbitrators agree , including the undersigned, that management'sright to control operations in an efficient manner rests onthe assumption that employees will exhibit respect for theirsupervisors . Additionally, arbitrators typically uphold theultimate penalty of discharge in cases where an employee hasdirected threats orphysical violence toward management . Inthis regard , it must also be remembered , however , that arbi-trators consider a supervisor ' s own intemperate conduct indealing with an employee in these types of situations .

As to the alleged " intemperate conduct" by thesupervisor in this case , an allegation made by the Grievantin addition to alleged harassment, the Arbitrator did notfind support for these allegations . They may be honestlyheld by the Grievant ; however , the testimony did not supportsuch allegations .

In the Arbitrator's review of this matter, theGrievant ' s psychiatric disability can not be ignored . Itwas surprising that supervision was not made aware of thisdisability , particularly when it was a 50% disability . Suchknowledge received beforehand may have eliminated Charge #3altogether .

Decision [LISPS & NALC # 19880] p. 11

Regardless of any speculation , the Arbitratormust consider the factual context for Charge #3 . Havingconsidered the testimony , the Arbitrator concluded thatthe Grievant used words which were improper and engaged inunacceptable conduct ; however , the Arbitrator did not concludethat the Grievant made the "threat " to "kill" or " get" thesupervisor . The established misconduct and language used,however, closely followed the behavior patterns found inDr . Stanfield ' s detailed psychiatric profile . The Grievant'stestimony and demeanor while testifying also manifestedstrong distrust of supervision and a combative attitudetoward supervision . These conclusions influenced the AWARDindicated below . Any further characterization in this regardmust be left to proper medical experts .

Given factual support for Charge #1, #2 and inpart #3 (not the most serious part , namely the alleged " threat"),strong discipline must be administered . The psychiatricprofile of the Grievant does not excuse this conduct, but itdoes explain in part aspects of Charges #2 and #3 . Also con-sidering the "elements of the Grievant's past record," theArbitrator concluded that "just cause " was present to supporta disciplinary suspension to cover the entire time of theGrievant ' s absence from the Service ' s active employment, butnot removal .

Thus , reinstatement must be directed . However, indirecting reinstatement , the Arbitrator , given the evidence inthis record , must condition this reinstatement on the Grievant'sability to successfully complete a fitness -for-duty examination .As part of the documentation attendant to this examination, theexamining physician must have a copy of this "Opinion and Con-clusion ."

clusions .The AWARD will reflect the above findings and con

AWARD

Based on the evidence as presented , it is the AWARDof this Arbitrator that :

Decision [LISPS & NALC #19880] p. 12

The Postal Service did not have just causeto discharge the Grievant , Larry Chapekis .

As to remedy : The Grievant shall be rein-stated without any back pay for the periodof his absence and his reinstatement is con-ditioned upon the Grievant successfullycompeting a fitness -for-duty examination .

Jurisdiction is retained should a p roblemdevelop in the implementation of this AWARD .

JFG :kk

June 30, 1984

Los Angeles, California

(1680- 2486-84 1